Volume 89 — Kansas Reports

<p>Appeal from Allen district court.</p>

<p>OPINION ON REHEARING.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>Fraternal Beneficiary Societies — Can Not Take under Will. The original decision (87 Kan. 652, 125.Pac. 36) holding that a local camp of Modern Woodmen is not competent to take and hold property given to it by will is, on rehearing, adhered to.</p>

<p>OPINION DENYING A REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Demurrer Erroneously Overruled — Judgment Reversed. When a judgment is reversed because a demurrer to the plaintiff’s evidence has been erroneously overruled, judgment for the defendant will be ordered if the plaintiff’s evidence affirmatively establishes some fact or state of facts which precludes recovery. Otherwise the cause will be remanded for a new trial. ,</p> <p>2. Negligence — Packing Company Elevators — Best Evidence. The rule stated in the second paragraph of the syllabus of the original opinion adhered to.</p>

<p>syllabus BY THE COURT.</p> <p>1. Fraternal Insurance — Disappearance of Insured — Pre- ' sumptions. The principles pertaining to presumptions in. cases of the disappearance and unexplained absence for seven years of a member of a fraternal order, stated in Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, and 77 Kan.. 401, 94 Pac. 788, are followed.</p> <p>2. -Diligence in Making Inquiry for Assured. A member of a fraternal order holding a beneficiary certificate left his . home and family in this state, declaring his intention to go to-California to find a new location, where his family should join him later. Letters were received by his wife at frequent intervals covering a period of five or six months, purporting to have been written by him at different places in California. The last of these letters, save one, was mailed at Stockton, Cal., and gave the information that the writer was sick with smallpox in a pesthouse there. About ten days later the-last letter was received, saying that he had suffered a relapse and was still in the pesthouse. Afterwards his wife wrote several letters addressed to him at Stockton, but hearing nothing further from him, on November 2, 1902, inquired by letter of the postmaster at Stockton, and was informed that her letters had not been delivered. She then wrote for information to the mayor and also to the chief of police of that, city; made inquiries of officers and members of the local camp of which her husband was a member, and of his father, brothers and sister, residing at various places in and out of the state; engaged attorneys, who published a notice in a newspaper at Stockton of his confinement in the pesthouse and disappearance, and through an officer of the local camp caused a like notice to be published in the official paper of the order, but obtained no tidings of her missing husband from these or any other source of information. After he had been absent for a considerable time she had a personal interview with the head consul of the defendant, to whom she related his- disappearance and the information received about his sickness, and was advised by that officer to follow up all clues and keep up the insurance payments, and that the -amount of her certificate would be paid in seven years from the disappearance, if her husband was not found. Upon these facts and the circumstances showing his relations to his family, his age, occupation, financial standing and the like, it is held that there was sufficient evidence upon which to submit to the jury the question of diligence in making inquiries.</p> <p>3. New TRIAL — Excluded Evidence Must be Produced on Motion. The rule that evidence excluded by the court must be produced on a motion for a new trial in order to obtain a review of the ruling excluding it, as declared in Clark v. Morris, 88 Kan. 752, 129 Pac. 1195, is followed.</p> <p>4. -Absence of Insured for Seven Years — No Presumption as to Time of Death. Where the presumption of death from unexplained absence for seven years without tidings applies, there is no presumption that the absentee died at any particular time within that period, but the time may be found by the jury from the circumstances of a particular case when they are of sufficient probative force to warrant the submission of the question.</p>

<p>Appeal from Saline district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — No Motion — Errors Waived. Ordinarily any ruling or ground for which a new trial may be granted is waived by the neglect of a party to ask for a new trial.</p> <p>2-. Motion — For Judgment on Special Findings — When Sustained. Where no motion for a new trial is made, but instead a party moves for judgment on the special findings, notwithstanding the general verdict, the question is whether, after indulging every reasonable inference in favor of the general verdict, the special findings returned by the jury are so antagonistic to it as to be absolutely irreconcilable with it, and so complete in themselves as to warrant the entry of judgment thereon.</p> <p>8. Contributory Negligence- — Street Crossing — Gates Not Lowered — Reasonable Care. Where gates have been erected and maintained by a railroad company where its road crosses a public street in a city, and which are to be lowered by a gateman when' trains are passing over the street, the fact that such gates are up when a person approaches the crossing is some assurance to him that he can safely proceed to cross, and while if will not excuse him for a failure to exercise reasonable care for' his safety, he is not required to exercise the same vigilance as he would be at a crossing where gates had not been erected and maintained.</p> <p>4. - Same. A traveler approached a railway crossing over a much traveled street in a populous city where gates had been built and maintained, and finding them open proceeded to cross the street without looking up the track, where a passenger train was approaching from the north at an excessive and unlawful rate of.speed, and which he could have seen if he had looked. After starting across the tracks a freight train came over the crossing from the other direction and caused him to stop between the two tracks in a space eight and one-half feet wide. After standing there about fifteen seconds he was struck by the engine of the passenger train and killed. Whether he exercised due care for his own safety, in view of the conditions existing at the crossing and under the circumstances of the case, or was guilty of contributory negligence, is held to be a question of fact for the determination of a jury.</p>

<p>Appeal from Reno district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Special Findings- — Inconsistent and Erroneous — Damages — Extraordinary Floods. Special findings of fact returned by the jury examined and held to be inconsistent and erroneous, to the prejudice of the defendant’s substantial rights.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Real Estate — Resale by Purchaser — Specific Performance of Both Contracts. One having a written contract for the purchase of real estate with a person having a similar contract for its purchase from the owner may maintain an action against the owner, and the person with whom he contracted, for the specific performance of both contracts.</p> <p>2.-Stibseqtient Oral Modification of Contract — Statute of Frauds. One who agrees in writing to convey real estate, fora payment to be made partly by a mortgage and partly in cash, and who afterwards orally consents to accept and does accept in lieu thereof a mortgage and money for an equal total, but in different proportions, can not defeat an action for the specific performance of the contract on the ground that the subsequent arrangement amounted to an attempt to ' make an oral modification of a contract required by the statute of frauds to be in writing.</p> <p>3. - Oral Modification — Substantial Compliance with Writ-. ten Contract. Under the evidence in this case an agreement to deliver a second mortgage in part payment of real estate is held to have been substantially complied with by the delivery of one which was subject to three other mortgages, their total amount being that for which the parties knew the property to be incumbered.</p>

<p>SYLLABUS BY!' THE COURT.</p> <p>1. Deed — Absolute in Form — May be Shown by Parol Evidence to be a Mortgage. An instrument in writing which purports, on its face to be an absolute deed of conveyance of land maybe shown by parol evidence to have been executed for the purpose of securing the payment of money or to secure the performance of any act or thing which the parties to the instrument may lawfully contract to be performed or done.</p> <p>2. Petition — To Have Deed Declared a Mortgage — Not Demur-rable. In an action to have a deed declared a mortgage and canceled, a petition which alleges that an instrument, in the-form of a deed, was intended by all parties as a mortgage to secure payment to one of the grantees of fifty per cent of his sales under verbal contract, that- one of the grantees would' and did enter into the business of selling an article of commerce and did thereby incur an indebtedness or obligation to the mortgagor, which obligation the mortgagor had discharged, is not demurrable as not stating sufficient' facts to constitute a cause of action.</p>

<p>Appeal from Greeley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>. 1. Conveyance — Mistake of Rights under Laws of Another State — Equitable Relief. The mistake of the wife and mother of a decedent in regard to the law of descents and distribu•tions of a state other than that of their residence, which led to the apportionment and transfer of land owned by the decedent at the time of his death to the mother when, under the statute, the widow was entitled to all of it, is a mistake of fact against which equity will relieve unless some principle of equity bars the granting of such relief.</p> <p>2. - Laches — Delay in Asserting Rights. The general rule is that equity will not interpose to relieve from a mistake where there is inexcusable delay and negligence in asserting a right or where the granting of the relief would operate inequitably, but laches is an equitable defense and will not bar a recovery from mere lapse of time nor where there is a reasonable excuse for non-action of a party in making inquiry as to his rights or in asserting them.</p> <p>3. - Whether Party Was Guilty of Laches Was for the Jury. In view of the testimony herein as to the delay of appellant in making inquiry or in asserting her right to land owned by her but which was conveyed to the mother of decedent by mistake,' the question whether she was guilty of laches was one of fact, and the ruling of the trial court sustaining a demurrer to her evidence was error.</p>

<p>Appeal from Cowley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Condemnation Proceedings — Damages — Market Value-, of Land — Evidence. On appeal from an award of damages for land taken for a right of way, a witness who had dealt in ' land in the general vicinity and had seen and examined the land in question was permitted to give his opinion touching its value, although stating that he was not acquainted with the market value of land in the immediate vicinity. Held not materially prejudicial.</p> <p>2. --- Rental Value of Land Immaterial. In such case when numerous witnesses testify as to their knowledge of the land and its value it is not material error to reject evidence of- • fered by the defendant as to its rental value. ’</p> <p>S. - Character of Surrounding Improvements Immaterial. When witnesses for both parties testify as to their acquaintance' with the land and as to its value before and after the appropriation of the right of way, it is not error to reject evidence in chief as to the character of surrounding improvements offered for the purpose of showing that the condemnation did not in fact damage the land not taken.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — Corporation De Facto — Taxation—Injunction. Although the petition preliminary to the incorporation of a drainage district under chapter 215 of the Laws of 1905 incorrectly described the territory intended to be included in the district, the board of county commissioners undertook to incorporate all the territory and- the inhabitants thereon as a drainage district and to make a body politic and corporate, and the petitioners, the owners of the land, the public officers and'the district itself have since proceeded on the theory that all of the territory intended to be described in the petition constituted a drainage district, and it has since assumed to be a corporation, and its officers have exercised corporate functions to the extent of building a levee, erecting a floodgate and issuing bonds to pay for the same, and subsequently levied a tax in payment of the bonds. Held, that the district will be deemed to be a corporation de facto, and the tax so levied can not be enjoined because of the irregularity in the organization.</p> <p>2. - Taxpayer Estopped to Enjoin Collection of Tax. Where a taxpayer encourages the making of an improvement of a drainage district by affirmative action and, in a way, induces the officers of the district to construct a floodgate and levee upon his property at public expense by which he receives a benefit, he is not in a position to ask a court of equity to enjoin the collection of a tax levy to pay for the improvement because of defects in the incorporation of the drainage district.</p> <p>3. -Drainage Act — Constitutional. The , drainage act (Laws 1905, ch. 215) does not conflict with the constitution by delegating, or attempting to delegate, legislative power to the petitioners who ask for the organization of a drainage district, nor because of the taxing powers conferred upon drainage districts.</p>

<p>Appeal from Cherokee district court.</p>

<p>Appeal from Cowley district court.</p>

<p>syllabus by the court.</p> <p>Insurance — Condition in Policy — Waiver by Solicitor. Where an agent of an insurance company sends a solicitor to inspect a risk and take a written application for insurance, and upon the application issues a policy, the company is bound by knowledge of the solicitor of the fact that gasoline is being used on the premises, and will be presumed to have waived a condition in the policy forbidding such use.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Real-estate Agents •— Contract to Divide Commissions — Consideration Therefor. An agreement between two real-estate agents to divide commissions, in pursuance of which one produces customers and the other makes sales to them and receives the commissions, rests upon a sufficient consideration and should be enforced.</p> <p>2. New Trial — Newly Discovered Evidence. A decision denying a motion for a new trial based upon newly discovered evidence is sustained upon the authority of’ Sexton v. Lamb, 27 Kan. 432, and Shores v. Surety Co., 84 Kan. 592, 114 Pac. 1062.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Statute — Poll Tax — Penalty—Constitutional. The title of the “Act in relation <to roads and highways” (Laws 1911, ch. 248) is sufficiently comprehensive to cover the provision in the act which imposes a penalty on those who are chargeable with a ■ poll tax and refuse to pay the same.</p>

<p>Appeal from Woodson district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Injunction — Wrongful Filling Excavation Under Extension to Bridge. Under the facts shown, where a city, to widen the channel of a watercourse, makes an extension to a bridge and excavates the earth thereunder and on either side, an injunction will lie to prevent the county commissioners from interfering with or filling in such excavation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pleadings — Allegations — Conclusion of Facts — Remedy—Motion. Where the only objection to a petition is' that the material facts are set forth in general terms and amount to mere conclusions of facts, the remedy is a motion to make more definite and certain, and'where such a petition is not attacked by motion a demurrer should be overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>T. Ejectment — Judgment for Possession — Writ of Possession— Unrecorded Deed. Where a conveyance by the defendant is. made before an action in ejectment is commenced but is withheld from the record until some time afterward and the plaintiff has no notice of the conveyance or of the claims of the grantee, and there is no change in possession or other indication of any claim or interest by any person except the defendant, and the suit proceeds to a judgment against him, a writ of possession should issue upon the application of the plaintiff' under which the defendant and all persons holding under or in privity with him after the commencement of the action, including such grantee, should be dispossessed.</p> <p>2. Jurisdiction — Party Bound by Judgment — Not a Party. This court is not without jurisdiction to review an order denying an application for a writ of possession against a person bound by the judgment but not a party to the action, notice of appeal having been served upoh the defendant in the action but not. upon the person against whom the writ was asked.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Master and Servant — Nondelegable Duty of Master — Negligence — Evidence. A nondelegable duty which a master owes to his servant is to adopt reasonably safe methods of doing the work required of the servant; and not only to provide a sufficient number of coservants, but to furnish reasonably ■careful coservants, and the evidence was sufficient to support the findings that t'his duty was not performed by the master.</p>

<p>Appeal from Edwards district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Relief on Ground of Fraud — Proof Required — Instructions. In an action for relief on the ground of fraud, an instruction that the plaintiff is entitled to recover if he has proved his allegations by a preponderance of the evidence, and that a bare preponderance is sufficient for the purpose, will not require the setting aside of a verdict against the defendant, in the absence of anything further to indicate that the jury were misled, where they were also told that matters that are unusual, unnatural or out of the ordinary course of affairs, should not be taken for granted upon slight proof, but can be established only by evidence of a reliable character, such as satisfies the mind.</p> <p>2. New Trial — Newly Discovered Evidence. In a case which at a first trial turned wholly upon a question of veracity between the parties, it is held that a new trial should be granted on the ground ‘of newly discovered evidence, in order to give opportunity for the production of a disinterested witness upon the vital matter at issue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Principal and Agent — Commissions — Definite Contract — Incompetent Evidence. On the trial of a controverted fact as to the amount contracted to be paid as a commission for the sale of land, each party pleading and testifying that there was a definite agreement in reference thereto hut differing as to the amount, it is error to admit evidence that a third party, at some indefinite time prior thereto, had an agreement with the landowner for the same service and for a commission much less than that claimed by one party and much greater than that testified to by the other.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Application op Payments — Running Account. Rules governing the application of payments by the court have no field of operation when the payments have already been appropriated by the parties.</p> <p>2.-Same. Where a continuous running account is kept with one who purchases goods upon orders made from time to time in pursuance of a written agreement that he will sell the goods so purchased and make weekly reports and remittances, and this business is continued and the account is kept in- the same manner after the expiration of the time limited in the contract, without any further agreement, the question whether remittances made and entered in the account after such period had expired were applied by the parties upon the items charged and entered before, or after that time, is one of fact for a jury.</p> <p>3.-Indemnity Bond — Liability Of Bondsmen. Where the liability of a purchaser for goods sold on credit is secured by a bond which expired by its terms at a fixed date, and sales are made and the account is continued thereafter in the same manner as before, a finding that the principal is indebted for goods purchased in the period covered by the bond is not inconsistent with a finding that his sureties are not liable therefor, if it is also found that payments made by the purchaser after that period had expired were applied by the parties upon the items charged and' entered in the account for goods purchased before that time.</p> <p>4. REFERENCE — When Not Error to Refuse. A refusal to order a reference-in an action upon a long account is not erroneous where only three items of the account are in controversy.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Inconsistent Special Findings — New Trial Granted. Consistent special findings control the general verdict when contrary thereto; hut when they are inconsistent with one another — some showing a right to a verdict and others showing the contrary — the case is left in the condition of being really undecided, and a new trial should he granted.</p>

<p>Appeals from Linn district court.</p>

<p>Appeal from Washington district court.</p>

<p>Appeal from Douglas district court.</p>

<p>Appeal from Allen district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Ouster — City Councilmen — Malfeasance in Office. The evidence shows that the defendants have been and are guilty of willful misconduct in office and of willful and persistent failure to perform their official duties; judgment of ouster is therefor rendered as' prayed for.</p>

<p>Appeal from Woodson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Accounting — Guardian—Fraud — Laches — Action Barred. In an action in the nature of an accounting brought against the representative of the- deceased guardian by the ward more than six years after the final settlement of the guardian in the probate court and the attainment of majority by the ward, and where it appears from the evidence that the mistake or constructive fraud could have been discovered at the time of the settlement, it is held that the finding of the court that the ward has been guilty of laches and can not maintain the action will not be disturbed.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Agency to Sell Real Estate — Not a “Power Coupled with an- Interest.” To constitute a power coupled with an interest there must be an interest in the thing itself, and not merely in the execution of the power. An agency or privilege to sell real property and receive all the proceeds above a certain sum as commission is not a power coupled with an interest; nor does an agreement on the part of a managing agent to be responsible to the principal for all general losses in the conduct of a business result in making him an agent with such an interest.</p> <p>2. - Mismanagement — Rescission of Contract — Accounting. A contract between plaintiffs, who were the owners of a flouring mill, and the defendant provided that the owners were to furnish money to repair the mill and capital to operate it until it could be sold; the defendant to have full management and control the property and business, and if he found a purchaser he was to have as his commissions all the proceeds of the sale above a specified sum. He was to be paid a fixed salary and agreed to become responsible for all general losses incurred in the operation of the mill, giving security to plaintiffs for that purpose, but was to have no interest in the - profits of the business. Held, that his relation to the property was not that of an agency “coupled with an interest,” nor was it beyond the power of equity to control; and that plaintiffs might maintain a suit before the expiration of the contract to compel an accounting and to rescind and annul the contract so far as the same authorized his employment, on the ground of his misconduct as manager.</p>

<p>Appeal from Franklin district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Open Ditch in Street — Evidence. The plaintiff alleged that the ditch in' which she was injured had prior to nightfall on the day in question been bridged or filled at crossings other than the one where the injury occurred. Held, that evidence of the condition in which such other crossings were left was competent to show how the defendants had treated the matter of guarding against accident along the line of the ditch and whether they had used their own usual care in relation to the crossing in question.</p> <p>2. - Repairs Made Subseqitent to Accident — Competent Evidence. Repairing or making a place safe after an accident has occurred there may properly be shown. The consequent reluctance of parties thus to guard against repeated injuries for fear they will thereby furnish evidence tending to show their prior negligence is not deemed of equal importance with protection against injury to life or limb.</p> <p>3. Verdict — Supported by Competent Evidence — Not Disturbed. The rules that a verdict or finding supported by competent evidence must stand, and that city streets and crossings are made to walk on and to he assumed as safe for the purpose, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Special Law — Relating to Bridges — Unconstitutional. Chapter 88 of the Laws of 1907, purporting: to amend section 1 of chapter 88 of the Laws of 1905, relating to the building of certain bridges in Neosho county, is a special act the purpose of which could be effected by a general law and must, therefore, be held to be repugnant to section 17 of article 2 of the constitution, although the act which it purports to amend is a valid special law.</p>

<p>Appeal from Phillips district court.</p>

<p>Appeal from Marion district court.</p>

<p>SYLLABUS BY THE COURT.'</p> <p>1. Tender — Must' be Unconditional. To constitute a sufficient tender it must he unconditional. Where a larger sum than that tendered is in good faith claimed to be due the tender is ineffectual as such if its acceptance invplves the admission that no more is due.</p> <p>2. School Teacher — Board Ordered School Closed — Teacher Entitled to Salary for Full Term. A district board ordered school closed a month earlier than the contract with the teacher provided for, on the ground that it was getting late and the older boys were needed for farm work. Held, that the teacher was entitled to recover his salary for the full term.</p> <p>3. -- Same. A teacher whose contract with the board makes no provision for . deduction in compensation during times when-school is closed, and who stands ready to teach and is prevented from teaching only because the board orders the school closed on account of the prevalence of a contagious disease in the community, is entitled to recover the compensation agreed upon.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from McPherson district court.</p>

<p>Original proceedings' in quo warranto.</p>

<p>Appeal from Cherokee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>'Trial — Proper Cross-examination of Witness Refused. Upon the cross-examination of a witness in a trial the examiner has the right to ask questions to test the knowledge of the witness concerning the matters with reference to which he has testified or to elicit evidence favorable to the examiner’s side of the case, provided such questions are not otherwise objectionable.</p>

<p>Appeal from Cowley district court.</p>

<p>Appeal .from Shawnee district court, division No. 1. •</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contributory Negligence — Evidence of Intoxication Competent. Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively establishing negligence on his part, but as being a circumstance to be considered in determining the matter.</p> <p>2. Witness — Refusal to Permit Proper Cross-examination — Motion for New Trial. The refusal of the trial court to allow the defendant to cross-examine the plaintiff upon an important matter can be urged as a ground for a new trial without a showing as to what answers the plaintiff would have returned if the rejected inquiries had been permitted. The provision of the code (§ 307) that when the ground of a motion for a new trial is error in the exclusion of evidence such evidence shall be produced at the hearing does not apply to that situation.</p> <p>3. Pleadings — Negligence—Issue of Safe Place to Work Fairly Presented. The issue of negligence in an employer in failing to exercise due care to provide for his employee a safe place in which to work may be presented by allegations of specific acts or omissions, without in so many words referring to the safety of the working place.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Vendor and Purchaser — Contract — Specific Performance. Where a written contract is made between the owner and a proposed purchaser of a' tract of land, in which contract the terms of the transaction are specified in full, and where the purchaser thereafter requests that the deed be made to recite a different consideration than is recited in the contract and the name of the grantee be left blank, the seller is not bound to comply with the request nor is he justified by reason thereof in repudiating the whole transaction, but it is his duty to grant the request or to tender performance in accordance with the contract.</p> <p>2. Agency — Purchaser Found — Owner Refuses to Deed — Agent Entitled to Commission. Where a real-estate agent has a contract with the owner of certain lands that if the agent secures a purchaser for the land at a specified price per acre net to the owner, the implied agreement being that any excess obtained should go to the agent as his commission, and the agent secures' a buyer who executes a contract to buy the land upon the terms prescribed to the agent but at the price of one dollar more per acre than the net price stated, and such purchaser is able and willing to buy the land pursuant to his contract but” the owner refuses without just cause to convey the land; held, that the agent is entitled to recover of the owner as damages a judgment equal to one ■ dollar per acre of the land.</p> <p>3. Attachment — -Judgment — Order of Sale Properly Made. Where in an action for the recovery of money, an attachment is issued and levied upon real estate and the action proceeds to judgment in favor of the plaintiff, no question as to the validity of the attachment having been raised, an order for the sale of the attached property, in case of the nonpayment of the judgment, is properly made.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Judgment — Against Sureties for Costs — Jury Trial. Under section 610 of the civil code the trial court, upon proper notice and motion, may enter up judgment against the sureties-on the cost bond for the amount of the costs adjudged against the plaintiff, and the sureties are not entitled to a jury trial on such motion.</p>

<p>syllabus BY THE COURT.</p> <p>Sale — Purchaser to Pay Consideration to Third Party — Agreement Valid. Upon a sale of.personal property the purchaser agreed with the vendor to pay the consideration to a third party who claimed a lien upon it under a chattel mortgage. After the property was delivered the purchaser was garnished by another creditor of the vendor. The mortgage was not in fact a lien upon the property, but the mortgagee and mortgagor having treated it as a lien and by mutual agreement provided that the proceeds should be applied upon the mortgage debt, they will be so applied.</p>

<p>syllabus BY THE COURT.</p> <p>1. “Factory Act”' — Carpenter Shop of Railway Company within its Provisions. A railway company which maintains a manufacturing establishment is not relieved from- compliance with the factory act because the establishment is a mere incident to the company’s business as a common carrier, or because the manufactured product is used by the company itself and not sold, or because manufacturing is not within 'the company’s charter powers.</p> <p>2. - Same. A separate building maintained by a railway company as a carpenter shop, which contains turning lathes, planing machines, bpring machines, mitering and mortising machines, circular saws, and other machinery, operated by electricity, wherein.lumber is sawed and otherwise converted into proper forms for mold patterns, frames for concrete work, repairs on buildings, and divers other uses, is a manufacturing establishment within the meaning of the factory act.</p> <p>S. Pleadings — Action under Factory Act — Issue as to Safeguard. In an action for damages prosecuted under the factory act for failure to provide a safeguard for a circular saw, it is not necessary that the plaintiff advance an issue in the petition respecting the practicability of such a safeguard.</p> <p>4. Negligence — Safeguarding Machinery — Evidence Sufficient. The testimony of witnesses describing a circular saw used in ■a carpenter shop, its' accessories, the method of using it, and the danger to be apprehended from it, is sufficient without more to sustain a finding by the jury that it was practicable to safeguard the saw, although several witnesses testified to the contrary.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — What Constitutes “Material” under the Law — Liability of Surety. Lumber furnished for and used in the making of forms for a concrete structure as provided in the contract and specifications for its erection, and which is I largely consumed and rendered valueless by such use, is material within the meaning of the mechanic’s-lien law (Civ. Code, §§ 649-662) and of the provisions of a bond given by al surety company in the form provided for in section 660 ofl the civil code, the obligation of which is that the contractorl will “pay all indebtedness incurred for labor and material furnished and used in and about said contract work, or which| might become the basis of a lien.”</p> <p>2. -Payment by Contractor — Application of Money by “Materialman” — Surety Not Released. The surety company can not escape liability upon the bond for material furnished to and used by the contractor in the building on the ground that money received from the owner and paid to the materialman was applied by the latter in discharge of an earlier indebtedness of the contractor for material used on other buildings, no direction having been given by the contractor as to the application of the payment at the time it was made.</p> <p>3. CORPORATIONS — Suretyship for Profit — Not “Favorites of the Laiv.” The law does not have the same solicitude for corporations organized for the purpose of giving indemnity bonds and which make suretyship a business for profit that it has for voluntary sureties. Such corporations are essentially insurers, and in determining their rights and liabilities the rules peculiar to suretyship do not apply.</p>

<p>Appeal from Chautauqua district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>'Action — Attorney Fee — Facts Must be Pleaded — Value of Services Proven. In an action in which it is sought to recover attorneys’ fees for the prosecution thereof the necessary facts should be pleaded, and when a jury trial is had evidence should he produced of the fact and of the value of the services and the issue should be determined by the jury as other issues in the case are determined.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Antenuptial Oral Contract — Reduced, to Writing after Marriage — Valid. A widow residing and owning lands in this state married a man residing and owning property in Nebraska. As part of the marriage contract it was orally agreed that he should receive nothing of her estate in case she died first, and that she should receive the sum of $1000 only of his estate in case he died first.’ After the marriage in Kansas the parties established their home in Nebraska where they resided for seventeen years, when she died, leaving children by a former marriage and a son by her last marriage. Soon after the marriage the husband and wife entered into a written contract, in view of the oral agreement, and of the same purport. In this action for partition brought by the children of the former marriage the surviving husband claims one-half of the land in this state owned by his wife at the time of the marriage and at her death. It is held that the written contract is valid and effectual although it does not recite or refer to the previous oral agreement.</p> <p>2. - Contract — Made in Nebraska — Construed under Laws of Kansas. The validity of the relinquishment by the husband of his rights in the wife’s land in this state under the contract above referred to must be determined by the laws of Kansas although the instrument was made in Nebraska.</p> <p>3. Antenuptial CONTRACT — Validity — Opinions of Lawyers— Not Conclusive. The opinions of witnesses, practicing lawyers of Nebraska, that the agreement and contract referred to in the first above paragraph are invalid, are not conclusive in the absence of a controlling decision in that state. Upon an examination of statutes in evidence, and decisions of the supreme court of Nebraska, it is concluded that such contracts are regarded in that state in the same light as they are viewed here.</p> <p>4. Evidence — Conversation with Deceased Wife — Incompetent. The surviving husband was incompetent to testify to a conversation with his wife, since deceased, by which he claimed that the postnuptial contract between them had been abrogated.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Sedgwick district court, division No. 2.</p>

<p>Appeal from Shawnee district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Refusal to Admit_ to Probate — Appeal to District Court ■ May be Taken. An appeal will lie to the district court from a decision of the probate court refusing to admit a will to probate, notwithstanding the amendment of 1907 to sections 19 and 20 of the act relating to wills (Gen. Stat. 1909, '§§ 9795, 9796), by which such order may be contested in a civil action in the district court brought within three years after the refusal to probate, the remedy provided by such amendment being held merely cumulative to that authorizing appeals from final decisions in the probate court (Gen. Stat. 1909, § 3624).</p>

<p>Appeal from Riley district court.</p>

<p>Appeal from Dickinson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Published in Another State — Action for Damages —Jurisdiction Obtained by Attachment. A civil action for the recovery of damages resulting from a libel published in another state may be brought against a nonresident of this state in any county in which the defendant has property sub- . ject to attachment. (Civ. Code, § 53, Gen. Stat. 1909, § 5646.)</p> <p>2. -Same. Under section 190 of the civil code (Gen. Stat. 1909, § 5783, as amended by Laws 1911, ch. 231) the plaintiff in a civil action for the recovery of money may have an attachment against the property of the defendant on the ground that the defendant is a nonresident of this state, although the cause of action arose ex delicto and in another state.</p> <p>3. Attachment — Requirements of Affidavit in Action for Un-liquidated■ Damages. It is not essential in order that the plaintiff may have ah attachment that the damages claimed should be capable of definite estimation so that the affidavit may state them with approximate certainty. It is sufficient if the action be one for the recovery of money and the affidavit state the nature of the claim, as for example, damages for libel, that the claim is just, and the amount the affiant believes the plaintiff ought to recover. (Civ. Code, §§ 190, 191, Gen. Stat. 1909, §§ 5783, 5784.)</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from Shawnee district court, division-No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Devisee — Interest in Real Estate — Subject to Attachment. The interest of a devisee in real estate is subject'to attachment although the will directs the executor to sell the property and distribute the proceeds among the devisees.</p> <p>2. Judgment — Order Allowing Executor to Sell Attached Property Approved. A clause of a final judgment in an action wherein the interest of a devisee in real estate had been attached, allowing the executor to sell the attached property as directed by the will and providing for the application of the defendant’s share of the proceeds upon the judgment against him, is approved.</p> <p>3. Attachment — Publication Service — Jurisdiction over Attached Property Only. Where the interest of a defendant as devisee in real estate is attached and service is made upon him by publication only, the court does not thereby obtain jurisdiction to apply upon the judgment rendered against him his share in the proceeds of personal property in the hands of the executor upon which -the attachment was not levied.</p> <p>4. Injunction — Confers no Jurisdiction to Dispose of Property. The issuance of a temporary injunction to restrain the disposition of a defendant’s interest in personal property, does not give the court authority to apply such property or its proceeds to the payment of the plaintiff’s claim.</p>

<p>Appeal from Cherokee district court.</p>

<p>Appeal from Butler district court.</p>

<p>Appeal from Butler district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — ¡Walnut Logs■ — No Completed. Sale Proven. Where, in an action in replevin, the plaintiff fails to show a completed sale to himself or to show any other right 'to the possession of property, he can not recover in the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury — Arbitrarily Disregarding Unimpeached Evidence. While a jury is at liberty to disbelieve the uncontradicted testimony of a witness which is deemed to be unreasonable and untrue it is never justified in arbitrarily and capriciously disregarding unimpeached evidence.</p> <p>2. - Findings — Unsupported by Evidence • — ■ Inconsistent with Verdict. Where undisputed testimony appears to have been arbitrarily disregarded by the jury and the special questions submitted unfairly answered, and where the special findings returned upon important issues are unsupported by the evidence and some of them are inconsistent with each’ other and with the general verdict, a new trial should be. granted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Beal Estate — Misrepresentation •— Mutual Mistake — Recovery of Excess Consideration Paid. Honestly believing that a tract of land contained 272 acres, a vendor so represented to, his vendee, who purchased relying upon the representation. As a part of the same oral negotiations a price of $45 per acre was agreed upon, and the total consideration was arrived at by multiplying the price by the number of acres. -A written contract of sale was signed which described' the land and stated the total consideration without referring to the number of acres or the price per acre. The contract was consummated by payment of the price and the execution and delivery of a deed in the ordinary form, which contained no reference to the price per acre but stated the consideration as $12,240, and gave a description of the land followed by the words, “containing in all 272 acres more or less.” The tract contained only 257.71 acres. The vendee sued to recover the excess consideration, stating all the facts relating to the sale in his petition. Held: (1) The plaintiff was entitled to recover because of misrepresentation as to the quantity of land, although the representation was made without intent to deceive. (2) The plaintiff was also entitled to recover, irrespective of fraud, because of the mutual mistake of the parties regarding the quantity of land. (3) The oral negotiations were admissible in evidence to sustain both grounds of recovery. (4) The plaintiff was not entitled to recover on the ground of willful fraud.</p>

<p>Appeal from Greeley district court.</p>

<p>Appeal from Neosho district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — State Impeaching its Own Witness — Judicial Discretion. The rule that a party is not allowed to impeach his own witness is subject to exceptions. Where a witness for the state had testified on direct examination to a commotion and to the appearance of a wounded man, and on cross-examination had testified to exclamations made by the wounded man, testimony of another witness for the state that the witness first referred to was drunk at the time is considered admissible in the discretion of the court.</p> <p>2. Homicide — Exclamation of Deceased — Admissible. Where a wounded man coming out of a stairway from an upper room exclaimed, “I’m shot,” and then said, “Take me home,” and being asked “Who shot you?” gave the name of one of three persons who were with him in the room immediately before the shooting, and the wounded man died in about, ten minutes afterwards, his exclamation and answer are admissible in evidence.</p> <p>3. Impeaching Witness — On Collateral Matter — Inadmissible. Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter which does not tend to prove or disprove an issue in the case, the contradictory evidence being offered by the party eliciting the statement.</p> <p>4. HoMiciDE^-Fmcfewee of Scuffle Before Shooting — Exclusion Was Error. A witness for the state testified to an encounter-between several persons in which one was shot. A defendant who was present at the affray testified that another, also present, fired the shot. He was then asked whether there was a scuffle before the shooting. In the circumstances shown the evidence was admissible, and an objection on the ground that the question was leading was not well taken, although the objection might have been avoided by relating the entire occurrence.</p> <p>5. Remarks — Of Attorney in Closing Argument — Improper and : Prejudicial. .A remark in the closing argument for the state in a criminal action about turning the defendants loose to get into trouble in other communities for carrying razors is improper where the evidence does not show that they have been in trouble caused in that way. Upon timely objection an instruction should have been given to prevent misapprehension by the jury.</p> <p>6. Homicide — Instructions Relating to One Jointly Charged — ■ Misleading. An instruction that the jury have nothing to do with the charge against a person not on trial but against whom there is evidence of guilt, may be understood to refer not only to the information but to the evidence imputing guilt, and if so understood is misleading. A clause should have been added to make the meaning clear.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Jurisdiction Over Conduct of Nonresidents. One state will not seek to censor or control the conduct of citizens and residents of other states unless such conduct results in an infraction of its own laws.</p> <p>2. Nonresident Parent — Resident Destitute Child — Desertion Act Applies. A citizen and resident of another state who without lawful excuse knowingly permits his child under sixteen years of age to he and remain here in destitute or necessitous circumstances without providing for the support and maintenance of such child thereby violates the. desertion act (Laws 1911, ch. 163), and may be punished therefor.</p> <p>3. - Destitute Child — When Nonresident Father May he Punished under Desertion Act. When upon such charge the father is arrested in another state and, waiving requisition, comes in the custody of an officer, the courts of this state have jurisdiction to try him upon such charge although he has never before been within this state. But when after having thus come he is discharged by writ of habeas corpus by the probate court of the county where the charge was laid, and before having an opportunity to return "is rearrested on the same charge, the state has no right to retain and try him for failure to support such child after he, the father, was thus brought here, without showing that after so coming he, without lawful excusé, knowingly failed or refused to furnish such support and maintenance. '</p> <p>4. - Same. To render a father liable to punishment for . such failure before being thus brought here it must be shown that he knew or ought to have known thé location and condition of his child, or that he had by act of -omission or commission permitted him to be and remain here in destitute or necessitous circumstances without providing for his support and maintenance.</p> <p>5. -— Same. A sovereign state will not be less fair in its treatment of parties than it requires its citizens to be, and having brought here a citizen and resident of another state upon criminal process to answer for an offense alleged to have been committed while in the state of his residence, it will not upon his discharge and before he has an opportunity to return, forcibly retain him to answer for an act of omission since he was thus brought here, unless such omission was knowing and willful on his part.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Sedgwick district court, division No. 2.</p>

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>Appeal from Ford district' court.</p>

<p>Appeal from Cherokee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Places to Receive and Discharge Passengers Must be Reasonably Safe. Where a street railway company maintains a stopping place for its cars to receive and discharge passengers at a point which is not in a public street, but is upon public grounds opening into a public street, it owes a duty to the public to keep the place in a reasonably safe condition for passengers unfamiliar with the surroundings who come there in the nighttime to board its cars.</p> <p>2. -Passenger’s Right to Assume Place to be Reasonably Safe. An intending passenger who approaches in the nighttime a stopping place established near a public street by a street railway company to receive and discharge its passengers, and who is unfamiliar with the surroundings, has a right to assume that the tracks of the company over which he must cross in order to reach the car are not in a dangerous condition; and if, without negligence on his part, he is injured by reason of the defective condition of the tracks, the company will be liable.</p> <p>3. Evidence — Subsequent Repairs and Alterations — Competent. Evidence of subsequent repairs and alterations is competent for the purpose of showing defendant’s control over the place where the injury was received.</p>

<p>syllabus BY THE COURT.</p> <p>Action — Damages—Barred by Statute of Limitations. An injury occurred May 11, 1904. A petition in an action to recover damages was filed May 9, 1906, and a summons issued on that day was served May 11, answer day being June 8. June 7 the defendant filed a motion to set aside the service on the grounds that -no summons had been issued and served as required by law and that the pretended summons was void. July 7 this motion was confessed. Alias summons was issued October 1 but service was not had until October 10. Held, that the action was not begun until the date of the last-mentioned summons. Bank v. Clark, 69 Kan. 864, 77 Pac. 92, distinguished.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Wyandotte district court, division No. 1.</p>

<p>OPINION ON REHEARING.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>“Agreement for Maintenance” ■— Testamentary — Vests no Title. On rehearing the former opinion (88 Kan. 545) holding that the “agreement for maintenance” in controversy- is testamentary in character and vested no present title is adhered to.</p>

<p>syllabus by the court.</p> <p>1. Taxation — Notice of Conveyance of Unredeemed Lands — Offi-dal Paper Pound Among Treasurer’s Files — Prima Facie Evidence. = What purports to be a copy of the official county paper, containing the notice of the conveyance of unredeemed lands sold for taxes, found among the files of the office of the county treasurer, although not required by law to be kept there, is sufficient to establish prima fade the contents of the published notice, where evidence of a higher order can not be procured.</p> <p>2. —;- Same. A judgment will not be reversed because such a copy was admitted without a showing that no better evidence was procurable, where no reason is suggested for supposing that thé notice there contained is not genuine.</p>

<p>Appeal from Hamilton district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Executed by Grand Lodge Treasurer without Authority■ — Grand Lodge Not Liable. The treasurer of the grand lodge of Masons of Kansas, claiming to have authority to borrow money for the grand lodge, procured a loan from the plaintiff and executed a promissory note therefor, signed by him as such treasurer. He had no authority to borrow the money or to execute the note. He was a defaulter and used the proceeds of the note to conceal his defalcation. Held, that the grand lodge was not liable in an action upon the note even if it were shown that part of the proceeds of the loan was applied in payment of its obligations, for the reason that it had no knowledge or notice of the unauthorized acts at the time the proceeds were received.</p> <p>2. Estoppel — Conduct of Principal Not Sufficient to Constitute Ratification of Unauthorized Acts of Agent. The grand lodge, without knowledge or notice of the loan or the execution of the .note, commenced an action against the bank where the treasurer had kept his account, to recover a sum of money which it claimed belonged in his account as treasurer and which the bank had applied in payment of his individual debt due the bank. Shortly afterwards a surety company which had bonded the treasurer paid the grand lodge the full amount of the defalcation and took an assignment of its claim and cause of action against the bank. In an action against the grand lodge upon the note executed to plaintiff the court charged the jury that if after discovering the facts respecting the execution of the note the officers of the grand lodge aided or assisted the surety company in the further prosecution of the action against the bank such conduct on their part would constitute a ratification of the unauthorized acts of the treasurer and render the grand lodge liable upon the note. Held, error, for the reason that upon payment of the loss by the surety company it became subrogated to the right of the grand lodge to assert a claim against the bank; and that the grand lodge had no further interest in or control over the cause of action against the bank or any power to prevent the further prosecution thereof.</p>

<p>syllabus by the court.</p> <p>1. Contracts — Real Estate — Void upon Default of Payment— Contract Taxable to Vendor. Contracts for the conveyance of real estate for a consideration to be paid by the vendee, who also agrees to pay the taxes on the land and is given possession, are taxable against the vendor although they contain provisions that the vendee shall cultivate the land and apply one-half the proceeds of certain specified crops each year in payment for it and that the contract shall be void upon default of the vendee, who may then be treated as a tenant, and payments previously made applied as rent.</p> <p>2. - Same. A clause in the contracts referred to, that time is of the essence of the agreement, does not relieve them from the burden of taxation.</p>

<p>Appeal from Shawnee district court, division No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Note — Payable to Third Person — Delivered to Payee Who Surrendered Another Note — Good Consideration. Where one executes his promissory note payable to a third person and delivers it to another to be used in the adjustment of an indebtedness from the one to whom the note is delivered to the third person, payee, without any express limitations as to such use, and the one in possession delivers it to the payee named therein and receives therefor his own note which the third person had theretofore held against him; held, that by the transaction the first party made the second party his agent to make any use of the note which, in the 'absence of fraud, may be agreed upon between the second and third parties in the adjustment of the indebtedness of the second party to the third party; also, that by the transaction the first party became indebted to the third party primarily and not as surety for the amount of the note-according to its terms.</p> <p>2. -Novation. In the situation recited above the first . party is substituted as a new debtor by way of novation for the original debtor and the surrender of the note of the original debtor constitutes a sufficient consideration for the new note.</p> <p>3. Trial — Instructions — Consideration for Promissory Note. Evidence having been produced that the appellee had procured the note sued on for a valuable consideration, the court erred in instructing the jury, in effect, that the appellee could not recover unless the appellant had received a valuable consideration therefor. A sufficient consideration to render a promissory note valid in the hands of the payee may be either a substantial equivalent in value received by the maker or a like equivalent parted with by the payee.</p>

<p>Appeal from Greeley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Interstate Shipment — Undervaluation to Obtain Lower Rate — ■ Limitation of Carrier’s Liability. A nursery company in Tennessee filled an order for a carload of nursery stock from a dealer in Kansas. In the absence of special instructions to the contrary, and under a custom understood and agreed upon by nurserymen, the shipment was undervalued to obtain a lower freight rate, under a classification permitting it, and a bill of lading was taken which limited the liability of the carrier accordingly. Some of the goods were injured by freezing while in transit, and upon arrival at their destination they were rejected. In an action for the price of the entire shipment, Held:</p> <p>(1)-- Seller Authorized to Follow Trade Custom in Billing Goods — Carrier Agent of Buyer. The seller was authorized, in the absence of special instructions to the contrary, to ship in the usual and ordinary way. His authority extended no further than to take a bill of lading of the kind usual in such shipments, and the carrier did not become his agent to make delivery instead of the agent of the buyer because the liability preserved against the carrier by the bill of lading was not sufficient to meet the loss sustained.</p> <p>(2)- Validity■ of Contract Limiting Liability of Carrier. The shipment being interstate in character was governed by the federal law, and under the federal statutes and decisions an interstate carrier may by fair, open and reasonable agreement limit the amount recoverable by a shipper to an agreed value, understated for the purpose of obtaining the lower of two or more rates, proportioned to the amount of risk.</p>

<p>Appeal from Dickinson district court.</p>

<p>Appeal from Ellsworth district court.</p>

<p>Appeal from Jackson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mutual Wills — Reciprocal -Gifts — Not Opposed to Public Policy. The separate wills of two persons which are reciprocal in their provisions giving the property of each to the other are mutual wills.</p> <p>2. - Same, Mutual wills made in pursuance of an agreement in consideration of reciprocal gifts or devises are not opposed to public policy nor contrary to the statutes of this state.</p>

<p>Appeal from Shawnee district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — “Attractive Nuisance” — On Private Property — City Not Liable. Two boys of appellees were drowned in a pool of a creek immediately below a culvert which the city had constructed in a street and across the creek and it was claimed that the opening in the culvert for the passage o"f water was too small, that in times of freshets the water in the creek was held back by the culvert and forced through the opening in' such a way as to make a pool in the creek below the culvert, that the place was attractive to boys who frequently went to the pool to wade and swim, and that as it was unfenced and unguarded, the city, under the attractive nuisance doctrine; was responsible for the drowning of the boys and liable for the loss sustained by appellees. The land where the pool was formed was the property of a private owner and over it the city had no control, and it did not appear that any officer of the city knew of the existence of the pool. Held, that the case does not come within the attractive nuisance doctrine and that the city is not liable for the loss.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Negligence — Wrongful Death — Notice—Action by Widow. The views expressed in the opinion in the case of Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 186, approved and followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutes Revised — Parts Omitted. Ordinarily Considered as Annulled. When a statute is revised, some parts being omitted, the omitted parts are not readily to be supplied by construction, but are ordinarily to be considered as annulled.</p> <p>2. -r Same. The explicit repeal of the precise portion of a statute in which a power is expressly conferred ordinarily forbids the continued existence of the power being implied from the retention of language incidentally referring thereto.</p> <p>3. -Highways — Allowance by Viewers — Commissioners Can Not Revise. Where in amending the section of the statute relating to the award of damages occasioned by the lay- ■ ing. out of a highway, a sentence was omitted, in which a power to revise the allowance made by viewers had been given in distinct and express terms to the county commissioners, the omission must be regarded as indicating a purpose to deprive the commissioners of such power, notwithstanding a part of the section which remains unchanged, allowing an appeal to the district court on the question of the amount of damages, describes such appeal as one taken from the decision of the commissioners.</p>

<p>Appeal from Norton district court.</p>

<p>Appeal from Montgomery district court.</p>

<p>Appeal from Clark district court.</p>

<p>Appeal from Wyandotte district court, division No. 1.</p>

<p>SYLLABÜS BY THE COURT.</p> <p>1. Bank Stock — Assigned—Not Transferred on Stock Book— Shareholder Liable. To effect an assignment and disposition of shares of capital stock in a bank so as to release the assignor from the superadded liability of shareholders fixed by law he must procure a transfer of the stock on the books of the bank in accordance with the provisions of the banking act.</p> <p>2. - Same. Such a transfer is essential to a release from liability of a shareholder who sells and assigns his stock to the bank itself in payment of a previously contracted debt owing by him to the bank.</p>

<p>Appeal from Ellis district court.</p>

<p>Appeal from Washington district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Divorce — Amendment to Petition — Retrial—Evidence—Extreme Cruelty. There was no error in permitting an amendment to the petition after the case was reversed by this court nor in a retrial of all the issues, and the evidence was sufficient to sustain the ground of extreme cruelty.</p>

<p>Appeal from Ford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Transactions with Deceased Person — Who are Competent Witnesses. Section 320 of the civil code as amended by chapter 229 of the Laws of 1911' does not prohibit a person from testifying in a case between others as to transactions and communications had personally by him with a deceased person from whom the parties to the litigation claim title.</p> <p>2. Error — Must Affirmatively Appear or Judgment Must Stand. The rule that in the absence of an affirmative showing of error in the instructions, or that the verdict is not sustained by the evidence or that the answers to special questions were not supported thereby or were inconsistent with a .general verdict, the judgment must stand' — followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Commission Merchant — Sale of Consigned Goods on Credit —Diligence Required. In the absence of instructions to the contrary a factor, or commission merchant, to whom goods are consigned may sell them for cash or on a reasonable credit, but if the sale is made on credit he must exercise reasonable diligence to ascertain the solvency and pecuniary responsibility of the purchaser from the usual and available sources of information, and his failure to exercise such diligence will render him liable for the resulting loss.</p> <p>2. - Same. The testimony in the case is held to be sufficient to support the finding that the factor did not use dtte diligence in the transaction herein involved.</p> <p>3. - Want of Diligence in Making Sales — Burden of Proof. Ordinarily if a consignor of goods alleges negligence or misconduct of a factor the burden lies on the consignor to prove it, but when a prima fade case of negligence of the factor is established the burden is on the latter to show facts relieving him from liability.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Agency — For Sale @f Township Bonds Not Exclusive — No Commissions. The contract of agency for selling township bonds involved in this case did not create an exclusive agency for the disposition of the bonds, and not having effected a sale the agent is not entitled to a commission.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Connecting Carriers — No Contract — Delivering Carrier May Recover Total Freight. Where goods are delivered to a carrier consigned to a point beyond its own line, no special contract being made, and are delivered to the consignor at the termination named, the delivering carrier may maintain an action against him for the total freight charges, notwithstanding his objection that it is not the real party in interest.</p>

<p>SYLLABuS BY THE COURT.</p> <p>Personal Injuries — No Negligence Shown — Verdict Directed— Verdict Set Aside — Error. Where the only inference to be drawn from the undisputed facts is that plaintiff’s injuries were caused by his own act in stepping from a moving street car and that the defendant company was not guilty of any act of negligence, it is error for the court to set aside a directed verdict in favor of defendant and to grant the plaintiff a new trial.</p>

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>Appeal from Bourbon district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Life Insurance — Suicide—Conflicting Evidence. In an action by the beneficiary to recover the amount of a life insurance policy where the only issue was as to whether the insured committed suicide, and on conflicting evidence the jury found for the plaintiff and the trial court approved the verdict, the judgment thereon will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Libel — Article Published in Newspaper — Of City Mayor — Not Libelous per se. It is not libelous per se to publish of the mayor of a city that he had said, referring to a matter concerning which the law gave him discretion to act as he saw fit, that he was running the town, and the council and people had nothing to do about it.</p>

<p>Appeal from Smith district court.</p>

<p>Appeal from Montgomery district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Erroneous as Matter of Law — Motion for New Trial Unnecessary. Where the appellant claims that upon the ascertained and undisputed facts the judgment is erroneous as a matter of law a motion for a new trial is unnecessary.</p> <p>2. -Specifications of Error — -Sufficient for Review. Where in such a case there are no special findings, the specifications of error are sufficient if they set forth the particular questions of law which appellant claims were involved in the general judgment and decided erroneously.</p> <p>3. Sale — With Warranty — Failure to Rescind in Specified Time. A contract for the sale of a water filter, evidenced by the correspondence of the parties, it is held, was not for a sale upon an implied warranty with a reasonable time for the purchaser to test the machine; but on the,contrary, a sale upon approval with the understanding that the machine was to be returned within thirty-five days if it proved unsatisfactory; and further held, that because of failure to return it within the agreed time, the purchaser became liable for the price.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Edwards district court.</p>

<p>SYLLABUS BY THE COÜRT.</p> <p>1. Adjoining Buildings — Access to Second, Story by One Stairway — License to Use — How Established. A license to the owner of a building permitting access to his second story by a stairway of an adjoining owner may be established by parol evidence of subsequent ratification as well as by evidence of precedent authority.</p> <p>2. -License to Use Stairway is Transferable. When such license has been so far executed that a revocation thereof would be a fraud upon the rights of the licensee, an equitable right arises capable of being transferred to third persons and binding on all parties who claim through or under the licensor with notice.</p> <p>3. - Acquiescence May Constitute License to Use a Stairway. Where two persons who own adjoining lots have erected thereon a building according to a common plan by which the only access to the second story of the part belonging to one of them is through a hall and stairway built wholly upon the part belonging to the other, the acquiesence by the latter in the contined use of such passageway by the former will constitute a license.</p> <p>4. - Subsequent Owner — Continued Use of Stairway — License Implied. Where a subsequent owner of the premises upon which the stairway was erected, with full knowledge of the facts, permits the continued use of the same by the adjoining owner, a license will be implied from his failure to object.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Third Class — Authority to Contract for and to Fix Charges for Gas. The municipal authorities of a city of the third class had authority in October, 1902, to contract with a gas distributing company to furnish gas to the city and its inhabitants, and to fix all charges therefor. (Laws 1897, ch. 82, § 2, Gen. Stat. 1901, § 654.)</p> <p>2.. City Ordinance — Rates for. Gas — Acceptance by the Company —Estoppel. A formal acceptance of the terms of the ordinance containing such a contract is not necessary to bind the company where the facts show an actual practical acceptance The company enjoyed all the privileges granted for a term of years during which its charges were made in conformity with the prescribed rates. Having taken the benefits of the grant the company must observe its conditions.</p>

<p>Appeal from Shawnee district court, division No. 1.</p>

<p>syllabus by the court.</p> <p>Arrest — In Colorado — No Requisition — Sheriff’s Fees — Mileage in Kansas Only. A sheriff with a warrant issued by a justice of the peace went to Colorado and apprehended the defendant, who returned with him without demanding a requisition, and was tried and convicted of a felony not capital.' Held, that the sheriff is entitled to mileage for the distance traveled in Kansas, only, in serving the process.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Complaint — Obstructing City Police Officer — Requirements in Accusation. The essential requirement in an accusation is that .the accused shall be informed as to the nature of the offense for the commission of which he is to be tried and with sufficient definiteness as to enable him to prepare for trial. Held, that the complaint herein meets these requirements.</p> <p>2. - Conviction under City Ordinance — Sentence may Include Costs. One convicted of violating an ordinance of a city of the second class for opposing and. obstructing an officer in the discharge of his official duties and which prescribed a fine as punishment of the offense may, under the provisions of ■ section 1439 of the General Statutes of 1909, be- adjudged to pay the costs and to stand committed until the fine and costs are paid.</p> <p>3. App.eal — By Cities of the 'Second Class — Statute. The act purporting to give cities of the second and third class the right to appeal in certain cases (Laws 1907, c.h. 261) is not invalid because of defects in its title. . .</p>

<p>Appeal from Wyandotte district court, division No. 3.</p>

<p>Original proceeding in habeas corpus.</p>

<p>Appeal from Shawnee district court, division No, 1.</p>

<p>Appeal from Cowley district court.</p>

<p>Appeal from Sedgwick district court, division No. i.</p>

<p>Appeal from Woodson district court.</p>

<p>Appeal from Stanton district court.</p>

<p>Appeal from Stanton district court.</p>

<p>Appeal from Stevens district court.</p>

<p>Appeal from Finney district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Granted Because of Newly Discovered Impeaching Evidence. As a general rule a new trial will not* be granted in order that newly discovered evidence of an impeaching character may be produced, but there are exceptions to the rule, and where the newly discovered evidence, although contradictory to that offered on the trial, satisfies the court that a material issue was wrongly decided it may, in order to meet the ends of justice, grant a new trial.</p> <p>2. - Same. Where a trial court, in the exercise of its discretion, grants a new trial an appellate court is reluctant to interfere with the order, and if granted upon the ground of newly discovered evidence such evidence is liberally interpreted with the view of sustaining the ruling.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. ORAL Contract — Father’s Real Estate — Services of Son— Part Performance — Injunction. A son who has supported his father for a number of years under an agreement that he is to become at once the owner of a tract of land, and that the legal title is to be vested in him at his father’s death, by will or otherwise, and who in reliance thereon has improved the property and performed service the value of which can not readily be estimated, is entitled to an injunction against the execution by his father of a deed to some one else.</p> <p>2. Homestead — -Equitable Title — Alienation—Joint Consent of Husband and Wife. Where in that situation the land is occupied by the son and his wife as a homestead, the title thereto can not be affected by an instrument signed by him, to which she has not consented.</p>

<p>Appeal from Jewell district court.</p>

<p>syllabus by the court.</p> <p>Appeal — Report of Referee — Judgment—Motion for New Trial Necessary. To entitle an appellant' to a review of a judgment based upon the report of a referee and to attack the findings of fact it is necessary that a motion for a new trial should have been filed in the trial.court.</p>

<p>SYULABUS BY THE COURT.</p> <p>1. Mortgage — Partial Assignment on Separate Paper — Transferee Not an Innocent Holder. The assignment upon a separate paper of a partial interest in a mortgage does not operate as a negotiation of the instrument or the debt secured thereby so as to render the transferee a holder in due course. (Gen. Stat. 1909, ¶¶ 5284, 5285.)</p> <p>2. - Same. Where such a partial assignment has been made and filed for record and thereafter the note is paid in full to the payee, who surrenders it and the mortgage to the payors, they can not maintain an action against him to recover that part of the payment represented by such transfer.</p>

<p>Appeal from Leavenworth district court.</p>

<p>Appeal from Greeley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Principal and Agent — Good Faith of Agent — Evidence—Entitled to Commission. An agent engaged to find a purchaser for his principal’s iand is bound to act with the utmost good faith towards.him and to keep him informed of facts affecting his interest; but, held that the finding of the jury that the acts of the agent herein were free from fraud is sustained by the testimony.</p>

<p>Appeal from Barber district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>Appeals from Riley district court.</p>

<p>OPINION 'DENYING A REHEARING.</p> <p>syllabus by the court.</p> <p>1. Executor — Entitled to Expense Incurred in Conducting Litigation. An executor is entitled to charge the estate with his expenses necessarily incurred in conducting litigation to determine whether certain real property is liable for the payment of obligations of the estate.</p> <p>2. - Compensation for Services Performed as a Lawyer. In fixing the ■ compensation of an executor the probate court may take into consideration the fact that he has performed services as a lawyer, by which expense to the estate has been saved.</p> <p>3. Burial — Testatrix—Place Designated by Will — Changed by Husband. Where a will expresses the wish of the testatrix for burial in a particular place, but burial is had elsewhere by direction of her husband, in accordance with what he states to have been her desire, expressed to him after the making of the will, the executor is thereby relieved of responsibility in the matter. His duty does not require him to challenge the accuracy of the husband’s statement, or to make an issue thereon for the determination of a court.</p> <p>4. Title — In Wife’s Name — Paid for by Husband — No Inheritance Tax. Where a husband buys land, paying for it with his own means, but taking title in the name of his wife under an agreement that she is to make a will devising it to him, and such will is not made, and after his wife’s death the husband obtains title to the property by an action in the nature of one for specific performance, he is not chargeable with an inheritance tax with reference thereto.</p>

<p>Appeal from Jefferson district court.</p>

<p>OPINION DENYING A REHEARING.</p> <p>HEADNOTE BY THE REPORTER.</p> <p>Sale — Drug Store — Mistake of Arbitrators — Issues on New Trial. The order reversing this case (ante, p. 412) entitles the defendant to a new trial upon all the issues raised by the pleadings, excepting with regard to allegations held not to state a defense.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Lessee Agent of Lessor — To Furnish Material and Labor. Where a short-term lease contains a provision authorizing the lessee to make repairs or iniprovements at his own expense but that all repairs, additions and material shall become and remain the permanent fixtures to the building; held, that the provision, being for his benefit, the lessor .thereby makes the lessee so far his agent as to entitle laborers -and material men who furnish labor or materials in making repairs or additions, under contract with the lessee, to a lien on the leased property for such labor or materials.</p> <p>2. - Materialman’s Conduct and Neglect Defeats His Lien. Where in such case a materialman, having no personal claim against the lessor, enters into an agreement with the lessor to accept his promissory note in lieu of the lien and thereafter, in violation of the agreement, files a statement for a lien based solely upon the note and without any statement of the .account; held, that by the violation of the agreement the note 'became invalid for failure of consideration, and by failing to file a statement of the items of the account the lien was lost.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Maintaining a Nuisance — Plea of Res Judicata. A judgment against a landowner and certain other parties enjoining the ■ maintenance of a nuisance is not an adjudication of a cause • of action against the landowner and still.other parties for the maintenance of a subsequent nuisance. (The State v. Kaem-merling, 83 Kan. 383, 111 Pac. 443.)</p>

STATEMENT. The exact language of the will referred to in the opinion is as follows: “I, A. P. Harmon, of Neal, Greenwood county, Kansas, being of sound mind and memory do make this-my last will and testament. • “First, I direct my executor to pay my funeral expenses and all my just debts. “Second, I will and bequeath to my grandson, Benjamin I. Hensen, the sum of five hundred dollars, the same being money that he advanced to me and my late wife. “Third, That all the…

<p>Appeal from Sedgwick' district court, division No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — F.ailure to Properly Transmit Telegraph Menage. The rules of liability and damages for failure to p"onerlv transmit and deliver a telegraph message stated in Telegraph Co. v. Simpson, 64 Kan. 309, 67 Pac. 839. are followed</p> <p>2. - Telegram Imparted Notice of its Importance. A message was delivered to an operator for transmission in the following form:</p> <p>“Will you give twenty-five dollars per acre for farm; have been offered twenty-four; wire me if you will take that. Will hold till three o’clock.”</p> <p>It is held that the contents of the message imparted notice of the importance and nature of the transaction, and that substantial losses might reasonably be expected from a failure to deliver it.</p> <p>3. -Loss of Sale of Farm — Proper Element of Damages. Evidence to prove that a sale of the farm to the addressee would have been made if the message had been delivered without change was admissible in an action against the company to recover damages for failure to so deliver it.</p> <p>4. - Damages ■ — • Changing Wording of Telegram. The proper delivery of the message as written would have resulted in a sale, but the sale was prevented by a change in the concluding sentence so that it read: “Hold till thirtieth.” The company is therefore liable for consequential damages.</p> <p>5.-- Agent’s Commission — Pro-per Measure of Damages. The payment of an agent’s commission reasonably necessary in effecting the sale of the farm but which would not have been payable if a sale had been made to the addressee, whereby the net amount received for the farm was diminished, may properly be considered as an element of consequential damages.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Whether Commission Was Earned — Question for Jury. When an owner of real estate has listed it with an agent who becomes the proximate, primary and procuring cause of a sale, a commission is thereby earned; and when there is a conflict of evidence as to whether such sale was thus procured, or by the owner after negotiations put on foot by such agent were broken off, and the jury find in the agent’s favor, and such finding is supported by competent testimony and approved by the trial court, it will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Detainer — Appeal — Appellant Must Pay Double Rental Value. In an action of forcible entry and detainer wherein a judgment was entered against appellant an appeal was taken to the district court in which an appeal bond was given. The appellant did not sign the bond and. the obligors bound themselves in a limited sum to pay double the value of the use and occupation of the property from the date of the bond until the delivery of the property if judgment should be rendered against appellant. After judgment adverse to appellant had been rendered appellee brought an action against appellant alone to recover damages for the unlawful detention of the property. Held, that the liability of appellant ' resulted from the taking of an appeal and the judgment de- . termining the unlawful detention of the property, that' the action herein was not brought upon the appeal bond nor was the appellant’s liability measured by the penalty of the bond, that when judgment was rendered against appellant it became liable to pay double the value of the use and occupation of the property from the date of the appeal until the delivery of the property, and that the appeal was not incomplete nor the liability of appellant affected by the fact that it did not sign the appeal bond.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Specific Performance — Fraud, Pleaded — Rescission — Jury Trial — Tender of Deed. The contract between the plaintiffs and the defendants provided for an exchange of property, that belonging to the plaintiffs consisting of real estate in Missouri, and that belonging to the defendants consisting of real estate and personal property in Kansas. The personal property was delivered to the plaintiffs and the deed to the Kansas land was placed in escrow until the deed to the Missouri land should reach the depositary, when both we’10 to be delivered. The defendants then undertook to rescind. They took possession of the personal property, demanded and received their deed of the depositary, and when the plaintiffs’ deed subsequently reached the depositary it wa> mediately returned to them. . The plaintiffs brought suit for the specific performance of the unconsummated contract, and with their pleading tendered a deed of the Missouri land. defendants asked for rescission, on the ground of fraud, and for the cancellation' of the contract. Held: (a) The ulain-tiffs were not entitled to a jury trial. (6) Tender of a d~~d of the Missouri land by the defendants to the plaintiffs was not required before the defendants answered praying foi rescission, and such a deed was not necessary in order to restore the plaintiffs to the position which they occupied before the contract was made.</p> <p>2. Two Actions — Specific Performance — Replevin—Based on Same Contract — No Jury Trial. The plaintiffs also brought an independent action of replevin for the personal property, in which a jury was called, but it was consolidated for trial with the specific-performance case. The jury returned findings of fact and a general verdict for the plaintiffs. The court made findings of fact in favor of -the defendants, set aside the findings and verdict of the jury, and rendered judgment for the defendants. Held, the consolidation of the two actions for trial was proper, and the court was authorized to make a final determination of the issues in both cases itself, notwithstanding the conduct of the jury.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Sale — Stock of Merchandise — Proceeds—Adjustment of Liens. In a transaction involving the sale and disposition df a stock of merchandise the priorities of liens of various creditors upon the proceeds of the stock are adjusted and determined.</p>

1. STATEMENT. The precise contents of the memoranda exchanged by the Kemper Grain Company and Alvin Harbour, doing business as Harbour Grain Company, referred to in the following opinion, are shown by these copies MEMBER WICHITA BOARD OF TRADE. CODES, ROBINSON’S RIVERSIDE. Harbour Grain Company, 209 Board of Trade, Wichita, Kansas. No. 295. 12/13/1. Kem/per Grain Co., City: Gentlemen — This confirms purchase of you to-day by person.

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>Appeal from Seward district court.</p>

<p>Appeal from Cowley district court.</p>

<p>Appeal from Sumner district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trade Name — Geographical Term — Unfa/ir Competition — Fraudulent Intent Not Necessary. In order for a corporation which has built up a business under its name, which includes a descriptive geographical term, to he entitled to enjoin a new company from engaging in the same business in the same locality under a name so similar that reasonably intelligent and careful customers will naturally be misled, it is not necessary that an intent to defraud shall exist.</p> <p>2. - Similarity of Names — Test—When a Question of Law. Whether the name adopted by a new corporation, embodying a descriptive geographical term, is so similar to one under which a business has already been established as to warrant an injunction against its use, depends upon the character of the business and its relation to the geographical term, but when these are determined the question becomes one of law, turning upon the likelihood of deception resulting to persons exercising reasonable care.</p> <p>3. Dependant’s Corporate Name — Not an Infringement on Plaintiff’s Trade Name. Although “The Kansas Milling Company,” engaged at Wichita in the manufacture and sale of flour, has built up under that name a business extending throughout the Union and to foreign countries, it is not entitled to restrain a new corporation, owning flour mills in several other cities, from engaging in the same business, with general offices at Wichita, under the name “The Kansas Flour Mills Company,” where no steps have been taken by the new company* to increase such confusion as might naturally result from the similarity of the names.</p> <p>4. - Same. In that situation the printing by the new company upon the sacks in which its flour is sold of its name, followed by the words “General Offices, Wichita, Kansas,” does not amount to an implied representation that its product is manufactured there.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale —• Contract • — • Assumption of Interest on Mortgage. A fair interpretation of the contract of sale in this case is that the purchasers assumed payment of the interest on the Seaton mortgage only from the date of the contract.</p> <p>2. Journal Entry — Void Judgment — Motion to Expunge — Costs of Motion. Where a journal entry is placed of record which purports to be the record of a judgment that was in fact never rendered, and the party appearing thereby to be the judgment debtor files in the court to which the record pertains a motion to expunge the false record, which motion is resisted by the other party but is sustained, it is not within the discretion of the court to tax the costs of the motion to the prevailing party.</p> <p>3. Petition —■ Facts Warranting Judgment — No Prayer for Money Judgment. An answer and cross-petition in which an answering defendant states facts which entitle him to a judgment for a certain sum of money, and in which answer is a prayer that his lien may be preserved, and for such other relief as in equity he may be entitled to, is sufficient, if found to be true, to entitle him to such judgment as the facts stated ■ warrant, although there is no prayer for a money judgment.</p> <p>4. Sale — Real Estate and Personal Property — Unpaid Balance— Lien on Real Estate. Where a written contract is executed for the sale of a tract of land and a number of articles of personal property at an aggregate price, and payments are made thereon, it is not error, in an action to foreclose. the vendor’s lien, for the court to award a lien on the land for the unpaid balance of the purchase price, provided there is any provision in the contract from which the court may fairly infer that the amount paid is equal to or exceeds the value of the personal property as contemplated by the parties when making the contract.</p> <p>5. Mortgage Foreclosure — Separate Tracts of Land — Sold as One Tract — Judicial Discretion. The method of disposing at judicial sale of a tract of land embracing many quarter-sections is within the judicial discretion of the trial court; and where by the terms of the decree two unpaid liens will remain on the entire tract after the sale, it is not an abuse of such discretion to order the tract sold as a 'whole instead of in parcels.</p>

<p>Appeal from Sumner district court.-</p>

<p>Appeals from Kingman district court.</p>

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garage Keeper — Bailee of Automobile — Liability for Negligence of Employee. A garage keeper to whom an automobile is entrusted for repairs or storage is a bailee for hire, and while'’not an insurer he is bound to use reasonable care to protect and preserve it and is liable to an owner for any loss resulting from his negligent acts or omissions, and also for those of his agents or employees while acting within the scope of their employment.</p> <p>2. - Same. An employee in charge of a garage in which an automobile has been left for repairs took the automobile out after it had been repaired, for the purpose of testing it, and also to carry home á customer of the garage who had brought his automobile there for repairs which the garage keeper could not make on that day, and while out on this trip the automobile was negligently wrecked. While the trip to the -home of the customer was longer than was necessary in order to try out the automobile the employee can not be deemed to have been acting outside the scope of his employment while he was out upon this trip, and the garage keeper is therefore liable for the negligent wrecking of the automobile.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Provisional Injunction — Conserving the Property — Abrogated by Final Decree. A restraining order granted in an action for divorce and alimony for the purpose of conserving the property of the defendant until the plaintiff’s rights can be effectively secured and enforced is abrogated by a final decree determining fully the rights of the parties unless a provision for further restraint be inserted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Advancement or Gift? — Deed Father to Son — Evidence—Subsequent Statements of Grantor. Upon the issue whether a deed made by a father to a son was a preferential gift or an advancement, subsequent statements of the grantor are admissible in evidence, if they tend to show what his purpose was at the time of its execution, regardless of which side of the controversy they support.</p>